Wadwell and Secretary, Department of Family and Community Service S

[2004] AATA 167

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 167

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/307

GENERAL ADMINSTRATIVE DIVISION		)
Re		IAN WADWELL

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms J Cowdroy, Member

Date20 February 2004

PlaceBrisbane

Decision         The Tribunal affirms the decision under review.

…............…(Sgd)....….........

J Cowdroy
  Member

CATCHWORDS

SOCIAL SECURITY – benefits and entitlements – disability support pension – eligibility – impairment rating of under 20 points - applicant’s condition is “temporary” – medical treatment is “reasonable” – decision affirmed

Social Security Act 1991

REASONS FOR DECISION

20 February 2004 Ms J Cowdroy, Member    

1.      This is an application by Gilbert Wadwell (“the applicant”) for review of a decision of the Social Security Appeals Tribunal (“the SSAT”), dated 13 March 2003, which affirmed the decision of Centrelink, dated 6 January 2003, to reject the applicant’s claim for disability support pension.

2.      The Tribunal heard the matter on 13 November 2003.  Mr Wadwell attended the hearing and gave oral evidence.   The respondent was represented by Mr Letch, a Departmental advocate.  

3. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, marked as Exhibit 1 and the following documentary evidence:

§Exhibit 2        The respondent’s statements of facts and contentions;

§Exhibit 3       Medical assessment report dated 30 July 2003 and Treating doctor’s report dated 15 July 2003;

§Exhibit 4        Applicant’s bank statement dated 22 September 2002 to

29 November 2002;

§Exhibit 5        Medical report of Dr Leonard King dated 25 June 2003;

§Exhibit 6        Statement of the applicant dated 15 July 2003

Background to the Application

4.      The applicant lodged a claim for disability support pension on 9 September 2002.  Centrelink, in rejecting his application, determined that he did not achieve an impairment rating of at least 20 points under the Impairment Tables.  The applicant appealed to the SSAT, which made the following findings:

§ The applicant suffers from psoriatic arthropathy, causing him intermittent pain and difficulties with grip, manipulation and lifting. He suffers a demonstrable loss of strength, manipulation and dexterity in both hands. An assessment under Table 5.2 of the Impairment Tables in Schedule 1B of the Social Security Act 1991 (the Act) resulted in a rating of 10 points for his right (dominant) hand and 5 points for his left hand.

§  The applicant had been diagnosed with sleep apnoea.  As this condition had not been treated and stabilised, it was assessed as temporary and did not attract a rating.

§  The applicant’s sleep apnoea was the major impediment to the applicant undertaking remunerative work, which could be treated through the use of a CPAP machine.

5.      In applying for review to this Tribunal, the applicant stated that his medical conditions are worse than that assessed by the respondent.  He also referred to the severity of his sleep apnoea.

Legislative Framework

6.      In order to qualify for the disability support pension, section 94(1) of the Act must be satisfied.  Section 94(1) states:

“Qualification for disability support

94.(1)   A person is qualified for disability support pension if:

(a)  the person has a physical, intellectual or psychiatric impairment; and

(b) the person’s impairment is of 20 points or more under the Impairment  Tables; and

(c)  because of the impairment the person has a continuing inability to work; and

(d)  the person has turned 16; and

(e)  the person either:

(i)  is an Australian resident at the time when the person first satisfies paragraph (c); or

(ii)  has 10 years qualifying Australian residence or has a qualifying residence exemption for a disability support pension”.

7.      The Introduction to the Impairment tables states that a rating is only to be assigned to a condition which is fully documented, diagnosed, and which has been investigated, treated and stabilised.  It further states that arrangements should be made for investigation of poorly defined conditions before considering assigning a rating. 

The Issue

8.      The issue for determination by this Tribunal is whether the applicant has 20 points under s94(1)(b) of the Act, and, if so, whether the applicant has a “continuing inability to work”.

Evidence     

9.      The applicant contended that he had been suffering from chronic fatigue syndrome long before the onset of sleep apnoea, which was only diagnosed in 2002.   He had been consulting Dr King, since about 1991, who had provided the diagnosis of chronic fatigue.   Before the onset of sleep apnoea, he was not falling asleep during the day.  The major symptom of chronic fatigue is lack of energy but not sleepiness. 

10.     The applicant stated he could not use a CPAP machine as he had experienced a reaction when using a similar type of facemask many years ago.  In any event, he no longer suffers from sleepiness during the day as, in about August of the previous year, he developed a form of collar which he wears at night and which allows him to breathe freely.  In effect, he claimed that the symptoms of sleep apnoea had resolved and any symptoms of tiredness or lack of energy emanate from chronic fatigue.   He indicated that Dr King was aware that his sleep apnoea was controlled. 

11.     In relation to his ability to work, the applicant contended that his psoriasis produces pain, in addition to reduced dexterity.  In 2000 he had worked as a console operator for a short period but had to relinquish that work as the air conditioning had aggravated his psoriasis and caused pain in his joints.  He had tried to work changing truck tyres but he could not lift any weight beyond 2 kgs.   

12.     There were medical reports from a number of practitioners, some dating back to 2001.  The Tribunal has focused on the reports which relate to the period proximate to the date of the applicant’s claim.   Firstly, in the report supplied by the applicant’s treating doctor which accompanied the claim, Dr L King stated that the applicant suffered from psoriatic arthropathy and chronic fatigue syndrome (T32).

13.     In a letter dated 21 November 2002, Dr King stated that the applicant’s sleep apnoea was assessed as “moderately severe” by the sleep disorder clinic at the Princess Alexandra Hospital, in July of 2002 (T38).

14.     In a report dated 31 July 2002, Dr McGrath of Health Services Australia, described the applicant as having chronic daytime fatigue and daytime drowsiness.  She also referred to investigations for sleep apnoea. 

15.     A further report from Dr King, dated 15 July 2003, is relevant insofar as it relates to his understanding of the conditions suffered by the applicant.  Dr King refers to chronic fatigue syndrome, which is further exacerbated by obstructive sleep apnoea.  He stated that the diagnosis of chronic fatigue syndrome was made in 2000 on the basis of the exclusion of all other sources for fatigue and lethargy.    However, in a letter prepared some two weeks earlier, 25 June 2003, Dr King refers to severe obstructive sleep apnoea and psoriatic arthritis and states that as a consequence of “these two chronic conditions, Mr Wadwell is unable to work”.  No mention is made of chronic fatigue syndrome.

16.     The Tribunal also noted the report of Dr McGrath, dated 30 July 2003, that was provided in relation to a recent claim for disability support pension.  Dr McGrath referred to the presence of both chronic fatigue syndrome and sleep apnoea  suggesting a rating of 20 points under Table 20 of the Impairment Tables in respect of the effects of both conditions. 

Findings and Conclusion

17.     With respect to the impairment rating for psoriasis, Mr Wadwell did not adduce any evidence to support a finding that the rating assigned by the delegate should be altered.  What he seeks is the allocation of impairment rating for chronic fatigue syndrome. 

18.     The Tribunal is satisfied that the impairment ratings for the applicant’s psoriatic arthropathy are appropriate on the basis that his symptoms are commensurate with the rating of 10 points and 5 points, respectively, under Table 5.2.  Although the dominant hand is referred to incorrectly, it makes no difference to the outcome as he has been allocated 10 points for impairment to the dominant hand and 5 points for impairment with regard to the loss of function in the non-dominant hand.

19.     With respect to a rating for chronic fatigue syndrome and/or sleep apnoea, there is a diversity of opinion as to whether the applicant suffers from both of these conditions.  Dr King, the applicant’s treating doctor, who has been treating him since 1998, (and not 1991 as stated by the applicant), was of the opinion that, as at July last year, the applicant was suffering from both conditions.     This is in contrast to the applicant’s evidence that the symptoms of sleep apnoea had ameliorated by late 2002.   Whilst there would seem to be considerable evidence to support the fact that the applicant suffers from chronic fatigue syndrome, its affects are difficult to differentiate from sleep apnoea. 

20.     The Tribunal did not find the applicant’s evidence of assistance in resolving this issue.   It is mindful of the fact that when he gave evidence at the SSAT in March of 2003, he described the sleep apnoea as worsening over the past two years, and stated that his treating doctor had advised him that it was moderately severe.  He indicated to the SSAT that although he may have some difficulty in using a CPAP machine, he was willing to trial it if he could afford it.   Before this Tribunal, he contended that the sleep apnoea has resolved.  If this is the case, it appears that his treating doctor, Dr King was not aware of his recovery when he prepared his report dated July 2003.  

21.     Additionally, the Tribunal is mindful of the fact that no mention is made of chronic fatigue syndrome in Dr King’s letter, dated 25 June 2003, and he considers that psoriasis and sleep apnoea are significant.  

22.     For the foregoing reasons, the Tribunal is unable to be satisfied that the symptoms from which the applicant suffers encompass both chronic fatigue and sleep apnoea, or if he only suffers from the one condition. 

23.     Further complicating the matter is that there is no evidence addressing the current status of sleep apnoea.   Although the applicant maintains that the condition has resolved, there is no medical evidence to this effect.  As chronic fatigue is a diagnosis which is made by excluding all other causes, the diagnosis of sleep apnoea would need to be excluded before it could be considered as to whether a diagnosis of chronic fatigue is appropriate and whether this accounts for all his symptoms.    

24.     That being the case, the Tribunal finds that, at the relevant time, no impairment points are warranted for any condition other than psoriatic arthropathy.   It follows that the applicant’s conditions warrants 15 points under the impairment tables and he therefore does not meet one of the requirements for payment of disability support pension.

25.     The Tribunal sees little point in addressing whether the applicant has a continuing inability to work in view of this finding.

26.     The Tribunal affirms the decision under review.

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J Cowdroy, Member

Signed:         Kirsten Donnelly
  Associate

Date of Hearing  13 November 2003
Date of Decision  20 February 2004

The Applicant appeared in person
For the Respondent                  Mr S Letch, Departmental Advocate